Volume 32



Dividend payout to be distributed to over 57,000 Texas business owners


OSHA’s emergency COVID-19 rule focuses on health care workers


Does OSHA Require Employers to Record Vaccine Reactions?


Healthbeat Podcast



Dividend payout to be distributed to over 57,000 Texas business owners

Texas Mutual announced today that its board of directors voted unanimously to approve a $330 million dividend distribution in 2021. We’re proud to be in a position to recognize our safety-conscious policyholders through our dividend program, especially after the challenges of 2020. As the state’s leading provider of workers’ comp, we’ve seen firsthand the impact the pandemic has had on businesses, which is why we’re grateful our policyholders have trusted us to continue protecting their business and their people.

The dividend payout will be distributed in June to over 57,000 Texas business owners, representing approximately 79% of Texas Mutual’s policyholders, in recognition of their efforts to provide safe work environments for their employees. This year marks the 23rd year Texas Mutual has paid dividends, bringing the total delivered back to Texas businesses to $3.4 billion since 1999. The dividend program allows Texas Mutual to share the company’s financial success with its policyholder owners who are committed to workplace safety and choose Texas Mutual year after year.

While Texas Mutual has awarded dividends each year since 1999, they are based on performance and therefore are not guaranteed. Additionally, dividends must comply with Texas Department of Insurance regulations.

Agents can view dividend information online on June 7 and checks will be mailed to qualifying policyholders on June 25.





OSHA’s emergency COVID-19 rule focuses on health care worker
National Law Review

After the CDC updated its mask guidance, we have all be wondering: Can we eliminate our mask and social distancing requirements for vaccinated employees? Can we ask employees if they have been vaccinated? Can we hold meetings and social gatherings in person again? While we gave you options and best practices in a recent post, we have new information from the DOL in the form of an Emergency Temporary Standard (ETS).

OSHA has finally issued its widely anticipated emergency rule that sets workplace safety parameters for employers in the healthcare sector and makes suggestions for unvaccinated employees in other settings. The guidance comes complete with a flow chart to help you determine if your workplace is covered by the ETS and a sample employee questionnaire to help covered employers screen employees before each work day. While the guidance is targeted toward protecting healthcare workers from COVID-19, it contains some voluntary guidelines for employers outside the healthcare industry to protect unvaccinated workers with a special emphasis on the manufacturing, meat and poultry processing, high-volume retail and grocery, and seafood processing industries.

Healthcare Industry Specifics
The ETS requires employers in the healthcare sector (i.e., hospitals, nursing homes, assisted living facilities, emergency responders, home healthcare workers, ambulatory care settings) to conduct a hazard assessment and have a written plan to mitigate the spread of COVID-19 for workers who are at a heightened risk of contracting the virus as they provide essential healthcare services to the public. Additionally, covered employers must maintain social distancing protocols or implement barriers, make sure that patients are properly screened for virus symptoms, and give workers paid time off to get vaccinated and to recover from vaccine side effects. The ETS includes a carve-out for certain workplaces where all workers are fully vaccinated and people who may have COVID-19 are not permitted to enter. The ETS exempts fully vaccinated workers from wearing a mask and social distancing when in areas where there is no reasonable expectation that a person with COVID-19 will be present.

The ETS is effective immediately upon publication, and employers must comply with most provisions within 14 days and with the remaining provisions within 30 days. OSHA has indicated it will use discretion to avoid penalizing employers who are making a good-faith effort to comply.

Non-Healthcare Specific Guidelines
OSHA also issued voluntary guidelines for employers that operate outside of the healthcare context to protect unvaccinated workers who (like healthcare workers) are at a higher risk of being exposed because their work involves close contact. In these higher-risk workplaces where there are unvaccinated or otherwise at-risk workers, OSHA advises employers to:

Suggest masks for unvaccinated (or unknown status) employees, customers and other visitors

Provide visual cues (e.g., floor markings, signs) as a reminder to maintain physical distancing

Stagger break times or provide temporary break areas and restrooms to avoid groups of unvaccinated or otherwise at-risk workers congregating during breaks

Implement strategies (tailored to your workplace) to improve ventilation that protects workers as outlined in the CDC’s guidance on “Ventilation in Buildings”

Continue to perform routine cleaning and disinfection

Record and report COVID-19 infections and deaths

Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards

The DOL and OSHA will continue to update the guidance over time with the goal of keeping up with developments in science and best practices. The guidance makes clear that all employers, regardless of industry, should be encouraging employees to get vaccinated and must continue separating from the workplace all infected people, all people experiencing COVID-19 symptoms, and any unvaccinated people who have had close contact with someone with COVID-19. We will continue bringing you the latest and greatest so that you can stay on top of developments and follow the latest guidance to ensure you are fulfilling your responsibility to provide a safe and healthy workplace.





Does OSHA Require Employers to Record Vaccine Reactions?
Employers that encourage or require workers to get vaccinated against the coronavirus must carefully navigate legal requirements and government recommendations—but the Occupational Safety and Health Administration (OSHA) recently gave employers a break by saying they don’t have to record COVID-19 vaccine reactions.

COVID-19 Vaccination Resources
The federal workplace safety agency requires employers to record certain work-related injuries and illnesses on the OSHA 300 log. OSHA initially said employers would have to record adverse reactions to COVID-19 vaccines if they require the shot—but not if they simply recommend that employees receive a vaccination.

The agency’s directive, however, led to confusion over what is a “truly voluntary” vaccination policy. Therefore, OSHA changed its position and said it will not require employers to record worker side effects for at least the next year.

Federal agencies “are working diligently to encourage COVID-19 vaccinations,” according to OSHA’s COVID-19-related FAQs, which were updated on May 21. “OSHA does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccination and also does not wish to disincentivize employers’ vaccination efforts.”

Nick Hulse, an attorney with Fisher Phillips in Charlotte, N.C., said the updated guidance “is a welcome reprieve” from OSHA’s recording requirements. “Whether it is through a mandatory vaccination program or simply encouraging employees to receive the vaccine, employers no longer need to worry themselves with recording reactions.”

Melissa Bailey, an attorney with Ogletree Deakins in Washington D.C., said that, to her, the revision signals close coordination with the White House. “The Biden administration’s messaging has consistently touted the importance of vaccines, and this is just one more way to convince employers to do whatever they can to encourage employees to get vaccinated.”

Recordable Injuries and Illnesses

Under the Occupational Safety and Health Act, covered employers must maintain an annual log of all work-related injuries and illnesses on their OSHA Form 300 (which is known as the OSHA 300 log). Employers generally must record all new work-related cases if they involve:

  • A death.
  • Days away from work.
  • Restricted work or transfer to another job.
  • Medical treatment beyond first aid.
  • Loss of consciousness.
  • A significant injury or illness diagnosed by a physician or other licensed health care professional.

The requirement to record “days away from work” would have been most applicable to COVID-19 vaccinations. Although the U.S. Centers for Disease Control and Prevention has reported that severe allergic reactions to vaccines are rare, many people have reported experiencing mild “flu-like” symptoms that may require a day or two of rest.

OSHA’s initial guidance did not provide an exception for mild symptoms or days that employees may miss while out on a flexible leave policy, Hulse observed. Now that the requirement has been lifted, he said, employers can be more flexible with providing time off from work to recover from the vaccine.

OSHA may change its directive in the future but said it will practice its discretion and won’t enforce the recording requirements through May 2022. “We will re-evaluate the agency’s position at that time to determine the best course of action moving forward,” OSHA said.

Confusion About ‘Truly Voluntary’ Policies

“Under the updated guidance, employers are now free to encourage employees to receive the vaccine without worrying that OSHA may interpret this encouragement as mandating the vaccine,” Hulse explained.

OSHA’s initial directive caused confusion about what made a vaccine recommendation “truly voluntary.” The agency said employees “cannot suffer any repercussions” from their choice to accept or reject the vaccine, which led to questions about how employer incentives—such as cash and gift cards—would affect the voluntary status of an employer’s vaccination program.

“OSHA has a history in its guidance and enforcement of looking at incentives with skepticism,” said Courtney Malveaux, an attorney with Jackson Lewis in Richmond, Va., and Melanie Paul, an attorney with Jackson Lewis in Atlanta, in a joint statement.

The amount of the incentive and whether it is part of a group health plan may impact the assessment of whether the incentive is truly voluntary, they said. Furthermore, they noted, if the incentive is provided to employees as a group, it could cause peer pressure to get the incentive for the group, even if a recordable incident occurred.

“The greater the incentive, the more likely that employees may feel compelled to receive the vaccine,” Hulse noted.

Even though OSHA will no longer require employers to record vaccine reactions under voluntary or mandatory policies, businesses still need to ensure their programs comply with other federal and state laws, Malveaux and Paul cautioned.

For example, they said, while employers may ask employees whether they have been vaccinated, they should end the inquiry there. Asking why an employee is not getting vaccinated could be viewed as asking about disability, pregnancy or religious beliefs, and any actions the employer takes afterward could be viewed as discriminatory, even if that was not the employer’s intent.